EDITION 31 AUGUST 2017LIBERTATEM MAGAZINE www.libertatemmagazine.comCover StoryGuaranteeing Rightto privacy as aFundamental Right Featured Story A Journey of Indian Muslim from 1947 to 2017 Editor’s Pick Virat- Kumble Debacle: An Unsavoury Fallout
LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 31 - August 15, 2017 Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee (Institute of Law, Nirma University) Advisory Editors Prof. Dr. Howard Williamson (Univ. of South Wales) Prof. Dr. Ahmad Ghouri (Univ. of Sussex) Dr. A. Lakshminath (Chanakya National Law Univ.) Prof. T. Sathyamurthy (National Law School of India Univ.) Dr. Borbala Fellegi (Consultant, Social Policy, Hungary) Dr. Dabiru Patnaik (Jindal Global Law School) Shhaurya Sah (Associate, Inttl Advocare) Fr. Peter Ladis (Chanakya National Law Univ.) Editorial Associate Nada Faruqi (Aligarh Muslim University) Senior Editors Smriti Brar Swarnabh Dutta Madhav Kumar (LLM, University of Hong Kong) Associate Editors Rubel Bareja (Institute of Law, Nirma University) Rohit Yodha (Institute of Law, Nirma University) Pragalbhi Joshi (National Law University, Odisha) Apurv Taran Jain (National Law University, Odisha) Richa Sankhla (Institute of Management, Nirma University) Mohd. Azeemullah (University of Al-Asmariya, Libya) Saloni Sharma (Institute of Law, Nirma University) Muskan Yadav (Institute of Law, Nirma University) Content Developers Khushbu Shah (Maharastra National Law University) Prateek Mago (Institute of Law, Nirma University) Vaibhav Sharma (Rajiv Gandhi National University of Law) Nitya Jain (Instiitute of Law, Nirma University) Shreyan Acharya (Vivekananda Institute of Professional Studies) Shresth Vardhan (Institute of Law, Nirma University) Debajyoti Saha (School of Law, Christ University) Mohammad Azeemullah (University of Al-Asmariya, Libya) Chahat Mangtani (Institute of Law, Nirma University) Shashwat Tiwari (Institute of Law, Nirma University) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Jane Maria (National Law University, Odisha) Shweta Subudhi (Midnapore law college, Vidyasagar University) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2017]
Contents Contents of Edition 30 August 2017 Volume 3 Number 8 Edition 31Cover StoryGuaranteeing Right to Privacy as a Fundamental Right (p.4)Featured StoryA Journey of Indian Muslim from 1947 to 2017 (p.8)Editor’s PickVirat- Kumble Debacle: An Unsavoury Fallout (p.10)Legal News StoriesThe Panama Gate and Pakistan’s Politics (p.14)The Curious Case of Resignation and Re-Election of Nitish Kumar (p.18)In Absence of Laws India Stands a Mute Spectator to Lynch Squad (p.20)the CourtroomAlimony is not synonymous with Looting (p.24)Jurisdiction of the Virtual Market (p.24)Erasing the Rape Cleansers (p.25)Parliamentary Standing Committee’s suggestions on Surrogacy Bill (p.26)Bombay High Court imposes Rs.50000 cost on petitioner (p.27)Court Summons Ola & Uber as Accused for Allegedly Overcharging (p.45)Delhi High Court: Derogatory Posts Against SC/ST On So-cial Media Is An Offence (p.29)5 Lakh As Damages To Yahoo Inc. For Its Trademark Infringement (p.30)The result of a 12 year struggle of Amrita Sharma (p.31) © All Rights Reserved by Libertatem Media Group [2017] Disclaimer - The opinion expressed in each article is the opinion of its author and does not necessarily reflect the opinion of Libertatem Media Group. Therefore, Libertatem Magazine carries no responsibility for the opinion expressed thereon.
Libertatem Magazine - Edition 31Guaranteeing Right toPrivacy as aFundamental Right By Khushbu ShahPage 4
Cover Story Right to Privacy: Discerning the Elusive In the past few weeks, there has been a fu- rore over the legal quandary of recognition of Privacy as a Fundamental Right. The issue was resurrected when a petition was filed challenging the constitutional validity of the Aadhar Card Scheme. Within the confines of the Aadhaar Scheme, the government has been pushing for a 12-digit unique identifi- cation number which will help the citizens avail benefits of a plethora of social schemes. Simultaneously, the Schemes demands linking of identity proofs such as Permanent Account Number (PAN) and driving license, with the Aadhar Card. Instead of dealing with the sub- ject of privacy in light of Aadhar Card Scheme, the Supreme Court of India will adjudicate the matter with a 9- judge bench. The decision of this case will not only decide the fate of Aad- har Card Scheme but also have an enduring impact on our outlook on privacy. Looking back The subject of privacy is not a contemporary legal issue, for even the framers of the Con- stitution of India found themselves in this quandary. Before the enforcement of the Con- stitution, the Constituent Assembly debated on including Privacy as a Fundamental Right. Thus, the matter was not forsaken and the framers of the Constitution were not oblivious to the subject. After deliberation, the Constit- uent Assembly jettisoned the idea of recognis- ing Privacy as a fundamental right. However, a perusal of the debates brings to light the fact that the understanding of privacy was very nascent at that stage.R. K. Sidhwa’s speech alluded to giving privacy in regards to the communication using telephones andtelegrams between two parties. Additionally, the drafts of assembly members like K M Munshi and Dr.Ambedkar recognized the importance of privacy of persons in his/her home. A stark opposition was insti-tuted, and the assembly abandoned the idea of including Privacy as a fundamental right. The underlyingreason and rationale behind the decision were the fear that such rights would culminate into the formationof a weak State with restricted power. Privacy was deemed as a hindrance effective investigation of policeand threat to the national security. The framers of the Constitution desired preclusion of any Right whichwould potentially obstruct police investigation which is evident from the following statements of AlladiKrishnaswami Ayyar:“In regard to secrecy of correspondence, I raised a point during the discussions that it need not find a place in achapter on fundamental rights and that it had better be left to the protection afforded by the ordinary law of the landcontained in the various enactments. There is no such right in the American Constitution…The result ….will be thatevery private correspondence will assume the rank of a State paper or, in the language of Sections 123 and 124 (of TheIndian Evidence Act), a record relating to the affairs of the State. A clause like this may checkmate the prosecution inestablishing any case of conspiracy or abetment in a criminal case and might defeat every action for civil conspiracy”. Page 5
Libertatem Magazine - Edition 31 Thus, they envisaged an all-powerful State, equipped with every possible precautionary measure to protect the national security. One of the hindrances in recognising Privacy as Funda- mental Right is that Supreme Court cannot transgress the boundaries of the Constitution set by the framers. Thus, to overcome this hindrance, it is imperative to take into cognisance the context in which the framers arrived to decision. India was a newly Independent Nation, which was grappling with poverty, communal violence and witnessing a brutal partition. All these events placed India in an extremely vulnerable posi- tion. Instability and uncertainty of era were the driving force behind the decision. The ramifications of such a State were blatantly overlooked as protection and secu- rity of the Nation was prioritized. The Genesis of Jurisprudence The commencement of the jurisprudence of Right to Privacy in India began soon after the perils of unfettered power of police machinery and lack of a nuanced jurisprudence on Privacy surfaced. A major thrust was impressed upon the Courts in India in 1963. It was in the case of Kharak Singh v. State of Uttar Pradesh, presided by 6-judge bench. This was a landmark case as the Supreme Court not only became privy to the downside of excess police power but also refined the under- standing of Right to Privacy. The Supreme Court of India while adjudicating on this case recognised privacy as a Human Right. Then began a torrent of such cases, wherein the court recognized the importance of Right to Privacy. Using Kharak Singh Case as a precedent in cases of Gobind Singh v. State of Madhya Pradesh, Court qualified Right to Privacy as an important element of “personal liberty” under Article 21 of the Constitution. ‘Right to be left alone’ was accepted by Supreme Court of India in the case of R. Rajagopal v. State of Tamil Nadu. This case also laid down remedies for breach of privacy in public law. Laws are now being analysed from a novel perspective on bodily privacy. For instance, rape laws were now seen as a violation of a person’s right to his/her bodily privacy. The laws criminalizing homosexuality under section 377 of Indian Penal Code is also viewed as an infringement on the privacy of a person by State. Hence, the various facets of Privacy are acknowledged. Nevertheless, the Court has refrained and hesitated to declare privacy as a Fundamental Right under the Constitution. Thus, Right to privacy is not a fundamental right though it has been recognized as a human right by Indian Courts. International Conventions like The Universal Declaration of Human Rights (UDHR) in its Article 12 and The International Covenant on Civil and Political Rights (ICCPR) in its Article 17 have recognised Right to Privacy. Need for Right to privacy as a Fundamental Right The unprecedented influence of the internet and groundbreaking impact of the virtual world of social media and networking on the lives of the people has changed the dynamics of privacy. This is the current era wherein importance of Privacy not only extends to the physical world but also to the virtual world. All the laws guard- ing Right to Privacy are merely statutory rights. In other words, they are stipulated by the enactments of the parliament which can be amended. If in the near future, the Government in power implements a draconian law in the likes of USA’s Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT Act, 2001), the only redressal is available is in Article 21 of the Constitution. Indian citizens will have to prove to the Supreme Court how such interference effects their Right to Life and Liberty guaranteed under Article 21 of Constitution. Privacy is not a uni-facet concept. It is not merely restricted to bodily and physical data but also personal data in the virtual world. With data mining, Big Data, data retention and mass surveillance on the rise, the laws need to harmonise with the fast-growing technology to protect the infringement of Right of its citizen.Page 6
Cover StoryPrivacy as a Fundamental RightSince the very inception, the debate reaches an impasseas soon as the privacy of an individual is juxtaposed tonational security. Emphasis should be laid on the pointthat declaration of a Right as a Fundamental Right doesnot place the matter out of the ambit of governmentalpolicies. We have Fundamental Right to Equality whichhas not hindered the State from implementing policiesfor the welfare of women and children. We have thefreedom to life and liberty, which has not curtailed thepower of the State to place a person in jail /detention incase of commission of criminal offences or even awardcapital punishment in the rarest of the rare cases. Thus,declaring a Right as Fundamental Right does not makethem inviolable and sacrosanct. The State still retainsthe ability to restrict these rights with a due procedureof law when public interest and national security is atstake. The trepidation that Right to Privacy will be detri-mental to the national interest fails to hold water. Conclusion Indian Jurisprudence on privacy has come an long way in recognising individual rights and curtailing state powers, however, it is need of the hour to elevate Right to Privacy as a Fundamental Right. For with emergence of Big Data, growing data mining by State and Non-state actors and wanton data collecting and retention by the Gov- ernment, privacy of every individual is at stake. Every action of the state cannot be condoned in the name of national security and thus, to keep in check such policies of the State, it becomes im- perative to empower the citizens by guaranteeing Right to Privacy as Fundamental Right. Page 7
Libertatem Magazine - Edition 31A Journey of Indian Muslimfrom 1947 to 2017Mohammad Azeemullah My father, Munshi Abdul Mabood, was a government employee in the department of posts in Bihar. He was a Muslim. In 1947, he did not migrate to Pakistan as he did not feel threatened by the post-partition communal flare-up in the country. He did not even know why India was divided. As time passed by, he came to understand that the goal of partition was to create an India for Hindus and a Pakistan for Muslims. I don’t know how he came to learn this but the belief left him shaken. Was he now a stranger in his own land? Without protest but with a heavy heart, he wrote out an application as a possible nominee to migrate to Pakistan and submitted that to a local office. He then began to wait for approval from the government. Migration to Pakistan was not an easy task by then. It involved great risks of physical and mental pain. The waiting, and the uprooting which lay ahead weighed heavily on him. His face grew longer by the day. One morning, Harihar Thakur, a practicing Hindu working in the same postal department, noticed my father in low spirits. He was inquisitive and asked the reason. When Harihar came to know about my father’s plan to migrate to Pakistan, he got furious and said fervently in Bhojpuri: ‘Sab Musalman ke Pakistan jaye ke zaroori na ba‘ meaning ‘all Muslims need not necessarily go to Paki- stan’. My father did not know about the alternative being given to Muslims – that they could choose between India and Pakistan. He was oblivious of politics. Harihar Thakur thundered in their dialect: ‘Ghar bar duar chod ke kahan jaibe? Tu pagla gaile ka?‘ (‘Where will you go leaving your house, land and people behind? Have you gone mad?’) Thereafter, Harihar Thakur went to the office where my father had submitted his application as a possible nom- inee for migration to Pakistan. Somehow, he managed to get my father’s nomination paper back. He then pro- ceeded to tear it up, throwing the pieces up in the air.Page 8
Featured StoryThat is how a practicing Hindu secured our future in India and shielded us from embarking upon a journey ofchaos, confusion and heartbreak. The way Harihar Thakur reasoned, a Muslim had the right to remain in Indiawith as much dignity and security as a Hindu could have in a secular state. There must be hundreds of thou-sands of similar anecdotes in which ordinary, God-fearing Hindus helped to reassure millions of Muslims inIndia at the time of partition that they had no reason to leave their homes and homeland.Fast forward to 2017, when a Muslim in India is lynched on the mere suspicion of consuming beef or trading inlivestock, when a Muslim can be thrown out of a moving train or thrashed simply for refusing to obey demandsto seats, I feel disillusioned.I am working in Libya, thousands of miles away from India, and when I surf the Indian channels and comeacross such stories, my heart sinks and I recoil in fear. I wonder whether I would be ‘safe’ in my own mother-land. Or could I ‘also’ end up a target of mob violence.Muslims today are deeply apprehensive about the way vested interests are playing politics to target the commu-nity. Such events demoralise them psychologically and belittle their aspirations for a secure future. In particu-lar, Muslims who work abroad in so many adverse situations are alarmed by these incidents and worry aboutwhat awaits them when they return home.What is the value of money earned abroad when Muslim Indians find their own motherland questioning theintegrity of her own children? Nothing is as upsetting to the heart as this mystifying experience of being Muslimin India. The journey for future and security which my father took in 1947 has reached a station of contrast in2017.India is celebrating its 70th Independence Day on 15 August, 2017. The Centre has decided to observe this In-dependence Day as ‘Sankalp Parva’ meaning ‘Day of Resolve’. In this spirit, let us make Sankalp, take a pledgeto become a builder of new India…with resolve to fight all sorts of discriminations and challenges facing ourcountry on way to become a super power. Page 9
Libertatem Magazine - Edition 31DVUinersbaaat-vcKoleuu:mrAybnFlaellout Vaibhav Sharma The recent appointment of Ravi Shastri as the head coach of the Indian Cricket Team and the success against Sri Lanka in the first test might have veneered the acrimonious exit of Anil Kumble form the coach’s position, but the controversial episode is bound to leave its mark on the coming times. This was not the first time when the relationship between the captain and coach got bitter and the latter had to bear the brunt of the same. The waspish tenure of Greg Chappel as the coach and his rift with Saurav Ganguly is well known. Chappel also rubbed his shoulders with other senior players like Sachin Tendulkar and Virender Sehwag who also described his stint as the coach in bad light. Greg Chappel was touted by many as ‘high-headed’ and had un- pleasant relationship with many players. But the present case of Anil Kumble’s exit came as a ‘rude shock’ to the entire cricketing fraternity and lakhs of fans because Kumble is known for his polite and upright demea- nour. The fact that Virat and Kumble both have shared dressing room place for Royal Challengers Bengaluru (RCB) in the Indian Premier League makes it even more grappling. The present day cricket with high pressure situations and immaculate practise of skills, call for the some- what limited role of a coach as a ‘teacher’ of skills. It has changed to that being more of mentoring and clam- ming a tough situation. It is also said that a coach could only help to a limited extent and it is finally up to the players to execute their skills on the ground. Imagine a coach teaching someone of Virat Kohli’s stature, how to bat. Thus, the team dynamics call for the players to be in a cordial relation with the coach and the coach should in turn contribute positively towards the team’s on-field success. The Board of Control for Cricket in India (BCCI) has done well letting Anil Kumble leave and selecting Ravi Shastri in his place. Ravi Shastri is known to be captain Kohli’s favourite for the job.Page 10
Editor’s PickAnil Kumble’s Selection as ‘Coach’The selection of Anil Kumble as the ‘Coach’ was done on 23rd June, 2016 after a strict perusal of all the appli-cants by the Cricket Advisory Committee (CAC) comprising of cricketing legends Saurav Ganguly, SachinTendulkar and VVS Laxman. It is pertinent to point out that the institution of CAC for selecting coach was awelcome step, post the BCCI’s take over by the Committee of Administrators (CoA) which was appointed bythe Hon’ble Supreme Court of India. The CoA had prudently shifted the onus of coach’s selection on CAC.It was a departure from the earlier regime of BCCI bosses (mostly politicians and businessmen) selectingcoach for the team upon their personal choice and not on cricketing merit. Amongst the names of probablecandidates, the name of ‘Ravi Shastri’ also featured on top, but the CAC decided in favour of Anil Kumbleafter interviewing the candidates. This transparent procedure was adopted to wean away any allegations ofnepotism upon the BCCI which was struggling to shrug off its image of elitist club of crony-capitalists con-trolling India’s biggest sporting board. The Lodha Committee report exposed the blatant nexus of selectedfew applying ‘scratch my back style’ to with-hold power.When the official announcement of Kumble’s selection was made, Virat Kohli was the first one to congrat-ulate him. Virat had tweeted “Heartiest welcome to @anilkumble1074 Sir. Look forward to your tenure with us.”It was dubbed as a positive signal for the Indian cricket that the captain had proactively welcomed the newcoach. Nobody could have predicted that what was being dubbed as a ‘dream-saga’ for the cricket to unfoldwould a year later turn into an utter mess. What is even more appalling is that the same tweet was removedby Virat Kohli from his Twitter Archives after Kumble mentioned ‘his reservations with the captain’ in hisstatement after tendering his resignation.Anil Kumble’s Tenure as CoachUsually when there is any sort of bitterness between the captain and coach, the team’s performance reflectsthe same on the field as well. The tense atmosphere in the dressing room translates into skewed skill appli-cation and tumbling display in the matches. The fact that Anil Kumble’s tenure as the head coach witnessedgreat success both in tests as well as limited overs cricket makes the duel even more startling. Kumble wasthe coach on the Indian cricket team from June 2016 till June 2017 till his one year contract expired. His ten-ure saw India defeating West Indies and New Zealand in the test series. It was followed by 4-0 whitewashof England in November-December home series. The fourth test series win came against Bangladesh withIndia stretching 19 test matches at unbeaten streak. Kumble’s desire to take the team to the top translatedinto excellent results with a 2-1 win against Australia which was achieved after the defeat in the opening testmatch of the series. India also got better against New Zealand and England in the limited overs match seriesunder his tenure. The metaphorical zenith of his tenure was India finishing as the runners’ up in the Cham-pions Trophy 2017, albeit poor show in the final against Pakistan. It is a pity that he announced his put downabruptly during a highly successful stint. The sparkling comeback of Cheteshwar Pujara into the test teamand the mentorship of Kuldeep Yadav into successful debut are the highlights of his coaching tenure. Hisdisciplined approach and confidence instilled in players’ ability are the hallmark of his cricketing style.It is interesting that Anil Kumble’s style which nurtured players like Kuldeep Yadav into internationalplayers was seen by some of the players as ‘over-disciplined’. One of the main reasons that are being givenfor players’ unhappiness is his seriousness and great emphasis on planning. He tried to make players fall inline with his no-nonsense approach. It appears that few players are too inflated with international success toadjust to a hardworking coach of Kumble’s stature.The ‘Ravi Shastri’ FactorThe rift between the captain Virat Kohli and the head coach Anil Kumble is being attributed to the closenessof Virat with Ravi Shastri. Ravi Shastri had served as the Manager of the Indian team in the interregnumbetween Duncan Fletcher’s exit and the subsequent selection of Kumble as the head coach. The new Indi-an team coach Ravi Shastri had applied for the said post in June 2016 as well, but the CAC trio opted forAnil Kumble. It is being said that Virat Kohli wanted Ravi Shastri to be appointed as the coach last year aswell, but the fact that Anil Kumble was in the race as well, blurred Shastri’s chances. The easy going andman-manager style of Ravi Shastri during his term as the manager of the team had touched nice vibes withthe captain Virat and most of the players. It is interesting to mention that during Ravi Shastri’s tenure, hehad the services of Sanjay Banger as the Batting Coach and Bharat Arun as the Bowling specialist coach.Bharat Arun’s term as the bowling coach was because of him. It is disappointing to note that after the Page 11
Libertatem Magazine - Edition 31 replacement of Ravi Shastri with Anil Kumble, Bharat Arun was dropped as well from the post of bowling coach. However, with the recent appointment of Ravi Shastri as the head coach, Bharat Arun is back in the team as the bowling coach. It is pertinent to point out that during Kumble’s tenure, he doubled as the bowling coach as well. His workload was thus, more strenuous that Ravi Shastri’s managerial term with two specialist coaches to work with him. The Final Falling Out By over two months it was being reported by the media that things were not very good between the captain Virat and coach Anil Kumble. The rumour mills were churning things out fast like the one that Kumble was revealing the dressing room information to the journalists. But it was one of the Chinese tittle-tattle which has no basis with truth. The resignation of Kumble came just after India’s loss to Pakistan in the Champions Trophy final. The resignation letter came out in the form a statement of Anil Kumble depicting his side of the story. He thanked the CAC, BCCI and lakhs of fans for the confidence they have entrusted in him. He acknowledged the misunderstandings which were brewing between him and Virat. He also pointed out the truce efforts done by CAC to resolve the differences. He said that he thought off very highly of Virat and hoped the best for the team in future. His resignation revealed the deep ditch that had cropped up between him and Virat, and his resigna- tion is being touted as his sacrifice for the betterment of Indian cricket. The entire episode of his resignation was speculations and rumour-mongering of epic proportions. Though the media had rightly attributed the fallout to ego clash with Virat and Virat’s dominating style, what has escaped much thought was the entire mismanagement on the part of BCCI to avert this fallout. It is true that BCCI’s CAC tried to do patch work in the last moments to reconcile the unwelcome development, but these were like Nero fiddling while Rome burns. BCCI got periodic reports from the team’s managers about the dressing room atmosphere and it is unbelievable that BCCI did not have a clue about the soring relationship, even though the newspaper were filled with the same. The whole conundrum was handled very unprofessionally and it ap- peared that India’s favourite sport’s federation had no clue about what happens in the dressing room. After all, the gamut of administrators, selection committees and managers are there for the betterment of the Indian crick- et. Coach’s bitter working alliance with the captain is something that is too serious to ignore, unless the money is all that the board considers important.Page 12
Editor’s PickVirat-Shastri duo returns…The resignation of Anil Kumble left a bad taste in the mouth of every ardent cricket fan in India. While somesaw it as Kumble’s large headedness to leave before things become worse, others thought that Kumble left theteam in the lunge with a surprise resignation. The thing that comes out of the sad development is that some oneof Kumble’s stature (he is world’s third largest and India’s largest wicket-taker of all times) and sincerity de-served better send off than this unceremonious exit. The blame must be apportioned by Virat Kohli as well whodid not reconcile to Kumble’s discipline. In India, captains have had differences with the coaches in the pastas well, but in this case the ramifications have been so glaring. The fact is that presently Virat Kohli is the bestplayer in the team and stands far higher than most of his team-mates on field as well. With the retirement of MSDhoni from test cricket and senior players like Yuvraj Singh, Harbhajan Singh, etc. remaining out of the teamaccentuated Virat, primus inter pares (first among equals) position. He is now the captain of the Indian team inall the three forms of the game. Amongst his predecessors, Saurav Ganguly who is called to have been a domi-nating captain also had legends like Sachin Tendulkar, Anil Kumble, Rahul Dravid and VVS Laxman with himin the team. With the supreme stature in the team, Virat’s preference of support staff would be of great cre-dence in any selection. Ravi Shastri’s selection in place of Kumble confirms the hegemonic influence that Virathas on Indian cricket currently.Virat Kohli who is presently Indian cricket’s brightest star has now been supported by Ravi Shastri as a coachwith Bharat Arun back as the bowling specialist coach. The results have helped in reducing the blame put uponVirat for the fall out. India has recently won the second test against Sri Lanka clinching the test series. Thecombination of Ravi Shastri and Virat Kohli is back with great results to show as well. Ravi Shastri’s managerstyle suits Virat’s dominance greatly as the former allows every player in the team to express himself on thefield. It is pertinent to mention that during 2015 when India toured Sri Lanka and lost the first test at Galle, RaviShastri mentorship helped the team put up as stunning comeback in the series. His motivational talk after theloss is credited with infusing the team with confidence and belief to perform under pressure conditions. It ishoped that duo of Virat Kohli and Ravi Shastri will be able to string great results for the Indian cricket and theteam will attain great glories in times to come. It is said that nothing succeeds like success. If the partnershipbetween Virat and Ravi Shastri sets new cricketing records, it would surely lessen if not completely wash awaythe stains of this undignified episode and entire furore surrounding it. Page 13
Libertatem Magazine - Edition 31The Panama Gate andPakistan’s Politics By Shubham Patel Introduction The world was struck with a shocking revelation when approximately 11.5 million documents that contained financial and attorney-client information of around 214,488 entities were disclosed. The documents belonged to a law firm based in Panama named Mossack Fonseca, hence the name ‘Panama Papers’. It revealed the per- sonal financial information about the public officials, including Politicians and other wealthy individuals who have formed shell corporations or other such entities for fraud, tax evasion, and other such activities. The leaks were reported firstly by the journalist Bastian Obermayer who worked for the German newspaper Suddeutsche Zeitung when an anonymous whistleblower named “John Doe” (a classic way to hide name) leaked the documents. The newspapers shared it with the International Consortium of Investigative Journal- ism (ICIJ), which shared the same with other partners including the BBC and the Guardian.Page 14
News StoryAs of now politicians, public officials and their close associates from all around the globe, excluding some partsof Africa, middle east and a few parts of South East Asia have been found implicated in the said leak. The papersnamed around 128 public officials and politicians, hundreds of elites and 12 current or former world leaders[Josh Hoxie, Counter Punch, American Tax Heavens: Elites Don’t Have to go to Panama to Hide Their Money –They’ve Got Delaware, 6th May 2016].The national leaders include Ayad Allawi, former President of Iraq; Petro Poroshenko, President of Ukraine;Alaa Mubarak, son of Egypt’s former President; a trail with leads to Vladimir Putin and his close friend; Sig-mundur David Gunnlaugsson, Prime Minister of Iceland and Nawaz Sharif, Prime Minister of Pakistan and hisfamily [Luke Harding, The Guardian, What are Panama Papers? A guide to history’s biggest data leak, 5th April,2016]. Out of the list, last two are most prominence. Sigmundur David stepped down when his name was leaked,and Nawaz Sharif was recently disqualified by the Supreme Court of Pakistan in a unanimous verdict from hold-ing the position as Prime Minister.The latter development is of great significance considering the political weather that will culminate in Pakistan aswell as the socio-political scenario of the sub-continent. Especially considering the fact that the run of the democ-racy in Pakistan is not a smooth one. This piece deals with the same in a detailed way.Mossack Fonseca: What is it?Mossack Fonseca is a Panama based law firm but has worldwide operations. It has its presence in several coun-tries with numerous franchises. The firm operates in incorporating companies offshore, wealth management etc.It incorporates companies in tax havens like Switzerland, Cypress, British Virgin Islands etc., and charges anannual fee for administration of such offshore firms.It is world’s 4th biggest provider of offshore services and mostly works in British administered tax heavens[Luke Harding, The Guardian, What are Panama Papers? A guide to history’s biggest data leak, 5th April 2016].What was revealed?There is a huge number of offshore companies and luxury properties which were owned by the family of NawazSharif, details of which were revealed by the Panama Paper leaks.What is of peculiar interest is that the alleged properties were all related to his three children – Maryam Sharif,Hasan Sharif and Hussain Sharif, and nowhere the name of Nawaz Sharif comes up. His children too have main-tained that there was nothing wrong and the companies were setup by the money, which was legally obtained[Megan Specia, The New York Times, How the Panama Papers Changed Pakistani Politics, 28th July, 2017]. However,the companies which were incorporated in the British Virgin Islands were listed to be owned by Maryam Nawaz,both were incorporated during the early 1990s when she was underage, thus by implication pointing that NawazSharif was the one who was in an actual sense behind incorporation. Also, the time also coincides with his firstterm as the Prime Minister, which was brought to an abrupt end over the charges of mismanagement and sud-den growth in family business [Megan Specia, The New York Times, How the Panama Papers Changed PakistaniPolitics, 28th July, 2017]. Hasan Sharif also ends up owning a company incorporated in the British Virgin Islands.A Curious case of CalibriNawaz Sharif and his daughter Maryam Sharif along with being engulfed in the Panama Paper scandal, alsofound them entangled in another major issue of forging the documents related to the scandal, the latter is alsopopularly named as ‘Fontgate’. What transpired was that after the names of members of Sharif’s family wererevealed and came up to be linked with offshore companies who purchased luxury properties in London. Whenquestioned whether public funds were used to buy such properties, Sharif’s family in their defense submittedthat Maryam was only a trustee of the companies that bought the flats.However, things took an interesting turn when it was discovered that the documents dated February 2006 wereactually typed in Calibri font face. The font was not introduced until January 2007 with the Microsoft Office 2007software package. This raised a serious doubt over the genuineness of the documents. Later the Pakistani investi-gators dismissed them after being assessed as “falsified” by the Radley Forensic Document Laboratory, London. Page 15
Libertatem Magazine - Edition 31 Even the designer of the font Lucas De Groot said that it was highly unlikely that Calibri would be used in any official document in 2006, and questioned, “that why would anyone use a completely unknown font for an offi- cial document in 2006?”[Ben Kentish, The Independent, Pakistan’s Prime Minister may be brought down by Microsoft’s Calibri font amid corruption allegations, 14th July, 2017]. This scandal, along with all other events played a major role in shaping the verdict that was given by the Su- preme Court of Pakistan. This also comes as a lesson (though being hard learned by the Sharifs) that in the age of technology even forgery is not that simple. The Verdict Based on the allegations of corruption and financial mismanagement over the issue related to Panama Papers, a Joint Investigation Team was constituted. This committee conducted a probe into the matter and prepared a report. Based on the report the Supreme Court ruled and disqualified Nawaz Sharif and any of his family members including his two sons and daughter Maryam from holding political office. The Court has further ordered the Anticorruption agency to look into and investigate the matter. The Court held that Nawaz Sharif showed ‘dishonesty’ in income disclosure by not declaring the monthly salary of $2,700 that he got from a company owned by his son. This decision was based on, the very rarely used provisions of Article 62 of the Constitution of Pakistan and Section 99 of the Representation of the People Act. The aforesaid provisions require the elected officials to be honest and truthful [Nyshka Chandran, C.N.B.C., While you were paying attention to North Korea another Asian nuclear power was destabilizing, 2nd August, 2017]. The decision has been received well and welcomed by the opposition parties, whereas there is a certain sect of people who raise a shadow of doubt over how all the matter was proceeded with, and hence not appreciates the judgment much.Page 16
News StoryThe Counter NarrativeWhere there are people who are rejoicing the dismissal of Nawaz Sharif and hailing the same as a victory overcorruption prevalent in the nation, there is another faction of people who do not see it the same way and seeit more as a plan to ouster the Prime Minister, hailing the decision to be a dangerous precedent. It is a fact thatthe Prime Minister Nawaz Sharif was not named specifically in the Panama Paper leaks, rather it was his fami-ly members who were named. It is further alleged that the judges show a disdain for elected leaders.Several questions are raised over the fact that the JIT that was constituted had members from the oppositionparties, military intelligence, and ISI, thus the enquiry to the very least cannot be dubbed as impartial. It is alsoalleged that the complaints about witness harassment and wire-tapping were, at best ignored. The other sideputs forward that all this was done because of the inclination which Nawaz showed towards better relationswith India and tightening the noose on military and ISI [Aqil Shah, The New York Times, Pakistan’s Court Sets aDangerous Precedent, 28th July 2017].However, what draws attention is the fact that the same bench was split in dismissing Sharif earlier in Apriland now has decided to do so, doing so on the basis of the provision which itself dubbed as a “nightmare” inan earlier decision [Nasir Iqbal, The Dawn, Articles 62, 63 need scrutiny, argues PM lawyer, 14th January 2017] [Seealso, Ishaq Khakwani case, 2015 Pakistan S.C.].ConclusionThe political scenario in Pakistan is of the most peculiar nature, none of the Prime Minister in the democrat-ic history of the nation has been able to successfully complete their tenure of 5 years. Nawaz Sharif was notan exception too, yet he is one of those who came closest to complete it, albeit in this third attempt to do so.Many of the prime minsters were overthrown in coups by the military. Military ended up ruling the nation foralmost half of the time since its independence [Asad Hashim, Aljazeera, Pakistan Supreme Court disqualifies NawazSharif, 28th July 2017].Narratives are present from both the sides, those welcoming the decision and the other one those who call thedecision of judiciary as the one that will undermine the perception of justice and will be bad for democracy ingeneral.What hurt Nawaz Sharif the most was his inability to put forward a consistent and credible defense over theallegation placed on him, in front of both the court and the masses. Rather he resorted to some baseless de-fenses, playing the victim card and contrary accounts by various members, this all put together created this“grand” fiasco.Politics in Pakistan has developed in quiet various facets, there is a more independent press, strong oppositionand a judiciary that is empowering and flexing its muscles. But there is a silver lining attached to it too, this isneither the last case of corruption, but is also not an end to democracy [Mosharraf Zaidi, Foreign Policy, TheDownfall of Nawaz Sharif and the Triumph of Stupidity, 3rd August, 2017].Whatever be the nature of recent developments, good or bad, they provide a switch in who called shots in thePakistan. A few things to watch out for are as follows:Firstly. The switch may put a person who is more amicable to persuade in matters related to terrorism andrelations with India, or on the contrary not so amicable one.Secondly. With elections due next year, citizens of Pakistan will have a chance to introspect as well as debate onwhat form of governments and leaders they want to be ruled by.Thirdly. Will the decision open a Pandora box of litigation with opposite parties bringing politicians of otherparties in court rooms?Fourthly. Will military try to benefit and ascertain its supremacy back in the backdrop of all this?The blame game will always be there, but in fact, it was not military which accumulated Nawaz Sharif’sfamily’s ill gotten wealth, it was not the one which stopped him from declaring his assets and it did not stophim from defending himself more strongly. Blame games apart, it is an onus now upon the media, opposition,judiciary and the citizens at large to help democracy flourish and cherish. Page 17
Libertatem Magazine - Edition 31The Curious Case ofResignation and Re-Electionof Nitish Kumar By Debajyoti Saha Recently, there was a great upheaval in the political situation in Bihar due to the announcement of alliance of Nitish Kumar and BJP. On July 26, 2017, the Chief Minister of Bihar, Nitish Kumar resigned from his post but with the BJP’s support he was reinstated as the Chief Minister at 5:00 P.M. on the same day. He ended the 20-month old coalition of JD[U], RJD and Congress which had helped him defeat BJP in the last State legisla- tive Assembly elections. The Governor of Bihar opined that he cannot work in the current political situation of Bihar but did not say anything about the alliance in the working of the Bihar government in future. Nitish Ku- mar gave reasons for his resignation in the manner that he was trying his level best to have good governance in Bihar but the situations like corruption allegations against Deputy Chief Minister Tejashwi Yadav were not letting him do the same. Aftermath of the Resignation Following the resignation, the future of Mahagatbandhan is in question. The Congress has already started lamenting this action and RJD has accused him of fooling the citizens of Bihar. Soon after the resignation, the Prime Minister of India congratulated Nitish Kumar for joining the “fight against corruption” by quitting the coalition of JD-U, RJD and Congress. Lalu Prasad Yadav accused Nitish Kumar of murder dating back to 1990s under Section 302 under the Indian Penal Code. He might have been one of the India’s CM accused in arms’ and murder case. BJP was the mastermind behind everything as per Yadav. Everyone knows that Nitish Ku- mar is aligned towards BJP sincebeginning. The Senior Bihar BJP leader Sushil Modi held in the press conference that the BJP would support the current move by Nitish Kumar. The BJP and JD[U] members are going to meet Governor in order to elect Nitish Ku- mar as their Chief Minister. JD(U) sources have been indicating that Nitish is in no mood to compromise on corruption issues and is not likely to strike any bargain with RJD over the matter. He is also not happy with Congress’s (also part of the Bihar Mahagathbandhan) tacit support to Lalu and his family over corruption alle- gations. The Opposition BJP has made it clear that it would take up Tejashwi’s benami property and shell Page 18
News Story company charges in a big way and corner the Nitish government in the upcoming Monsoon session of the Bihar Assembly. He is known for resigning if he is placed in adverse situations. He resigned as a railway minister after the Gaisal train accident in 1999, then as chief minister when he couldn’t muster majority support in 2005, and again in May 2014, when JD(U) badly lost the parliamentary election. The 243-mem- ber Bihar Assembly has 80 MLAs from RJD, 71 from JD(U), 27 from Congress, 53 from BJP. Even if the RJD gets support of Congress it will be 15 short of the halfway mark. Meanwhile, the state unit of BJP has already declared that if needed it would extend outside support to Nitish. The Governor of Bihar heavily criticised Keshari Nath Tripathi, the governor of Bihar, has been questioned on his past records. The Governor’s discretion to analyse the possibilities of formation of Government thereby bypassing the calling of the single largest party to form the government has been questioned. The Governor of Bihar has been the Speaker of Uttar Pradesh Legislative Assembly, where due to his controversial interpretation of the Anti-Defection law, gave a chance to Kalyan Singh to manage the BSP MLAs and offer them seats. While acting as the Governor of Bihar, he gave more than required time to JDU rebel Jitan Ram Manjhi to gath- er support from different areas of Bihar. Therefore, the Chief Minister of Bihar, Nitish Kumar has criti- cised the role of Tripathi as the Governor of Bihar.The AllianceThe alliance can be seen from three different angles. Firstly, the consolidation of the Muslim vote in futuremight be in favour of RJD considering the present position of Nitish Kumar. Nitish might need Lalu to get allthe base votes as the intention of BJP will be to demolish JD[U] from the bottom. Now some of the Lalu’s sup-porters are forecasting that the alliance will lead Lalu to come back in power as the party will be having betterbargaining opportunities. But people are scared of the diminishing political image of Lalu Prasad Yadav as aleader. Coming to Nitish Kumar, it is being apprehended that there may be a fall in JD[U] due to overrulingof every disagreements among the party members by Nitish Kumar. People are also scared of the role of Mo-di-Shah duo both inside and outside the party. BJP might get a lot of clout due to the above alliance. There arehigh chances that BJP might leave Nitish Kumar to his own fate during the 2019 Lok Sabha elections.Considering the realities of politics in Bihar, there is a black spot on RJD’s role as a political party due to allega-tions of corruption on it. This strengthens the chances of RJD to keep itself in alliance with the JD[U]. The BJPhas felt that the RJD-JD[U] alliance is a nightmare after its loss in 2015 State elections. Therefore, BJP mightrequire JD[U] in fighting elections in Bihar. Coming to the Muslim vote, Nitish Kumar would still be havingan upper hand as he has earned the same on his own. He has performed better than any other political partiesin regards to any community, caste etc. Therefore there is a high probability of Nitish Kumar gaining power inboth 2019 Lok Sabha elections as well as in 2021 Assembly elections. He may be able to keep BJP in its second-ary position in BiharThe third possibility of the above alliance can be that Nitish Kumar will be able to keep a check on the patternof work of BJP as he has a strong persona unlike others who had joined hands with BJP earlier. BJP is strongenough from inside and outside of its political domain. It is really hard to shake the party. But critics of thepolitical situation have opined that the Modi reign might face a great setback because of the opposition of thepattern of Modi’s working like ruling dictatorially through the demonetization measure. This opposition main-ly comes from the parties allies. It may be seen prima facie that the state of Bihar might be saffronised by thealliance but it looks like Nitish Kumar will not let it happen. Page 19
Libertatem Magazine - Edition 31In Absence of Laws IndiaStands a Mute Spectatorto Lynch Squad By Mohammad Azeemullah Law is the defining principle of our life. It controls and regulates the direction of our actions in both personal and social state of affairs. India has a plethora of laws that not only safeguards the rights of its citizens but also administers its office of governance effectively. From stealing to murder, bribery to scam, rape to domestic violence, and almost every spectrum of life of its citizens is well-codified and documented into the legitimacy of laws. Ironically, India has no specific law that safeguards an individual from being attacked or killed by a mob at a public place. The recent chilling episodes of mob violence from Kashmir to Haryana and from Rajisthan to Jharkhand testify the inability of India as a state with respect to a law in containing the ugly threat of growing mob violence. For the fact that medieval form of regressive justice still exists in the 21st century contradicts the character and spirit of India as a civilized nation. The lynching incidents are not sporadic. One particular community is also not the target of this madness. However, recent cases of mob violence hurt Muslim community the most. In fact, India has a history of lynching. 11 years ago, on September 29 in 2006, four people were lynched over a land dispute at Kherlanji in Bhandara district of Maharashtra.Page 20
News StoryIn March 2015, a mob of about 7,000-10,000 people broke into the Central Jail at Dimapur in Nagaland anddragged out a man accused of rape. The mob paraded him naked and beat him to death.In September the same year, Mohammad Akhlaq was lynched by mob at Dadri in Uttar Pradesh over suspi-cion of eating and storing beef.In April this year, Pehlu Khan - a 55-year-old dairy farmer - was waylaid by a mob at Alwar in Rajasthanwhile he was transporting cows for his dairy farm, and thrashed. Pehlu Khan died two days later succumb-ing to his injuries.Earlier this month, an activist, Zafar Khan, was allegedly killed by some municipal officials at Pratapgarhdistrict of Rajasthan after he objected to clicking photographs of women relieving themselves in open.Recently, DSP Ayub Pandith was lynched outside a mosque in Srinagar while teenager Junaid was beatenand stabbed in Delhi-Mathura train. Ayub Pandith was clicking photograph while Junaid was returninghome in Ballabhgarh of Haryana along with his three brothers after shopping for Eid. The list is painfullyendless.Currently, the atmosphere is so charged with hatred and suspicion that even the most trifling argument,be it over a seat on a train or a bus, a land squabble, or road rage, can lead to the murder of an individualby the ‘court of mob’ to deliver immediate justice. Lynching is something that is unacceptable to us. It notonly shows India in a poor light both within and abroad but also gives the impression of how a nation isill-governed in absence of laws in this particular respect. The insane culture of violence has finally moved theconscience of our Prime Minster, Narendra Modi, and is believed to have spoken in a tone of no compromise:“killing people in the name of [cow worship] is not acceptable.” “No person in this nation has the right totake the law in his or her own hands,” he added. (Time, India’s Modi Speaks Out Against Cow Vigilantes After‘Beef Lynchings’ Spark Nationwide Protests, June 29, 2017)The precious words of our most popular Prime Minister seem to have fallen over deaf ears. Hours after hisspeech was delivered over ‘cow terrorism’, news of another lynching came from Jharkhand. A man identifiedas Alimuddin Ansari was beaten to death near Ranchi over mere suspicion of carrying meat in his van.This is not the first time the Prime Minister of India has expressed his displeasure over cow vigilante. Wayback in 2016, addressing the second anniversary of his government’s MyGov initiative, PM Modi had statedthat the cow vigilante groups were “anti-social elements”.“It makes me angry that people are running shops in the name of cow protection… Some people indulge in anti-socialactivities at night, and in the day masquerade as cow protectors,” he said. [The Indian Express, June 29, 2017]The questions are: How long will India remain a mute spectator to the cold-blooded murder by a mob? Howlong will India remain dependent upon hollow words of our leader to contain the growing menace? Do wereally need a specific law to meet the rising incidents of lynching?The tragedy is that lynching does not find mention in the Indian Penal Code. Absence of a codified law todeal with mob violence or lynching makes it difficult to deliver justice in the cases of riots. Lynching is but ‘Aprotracted riot in slow motion’ as Indian Express states.However, Section 223(a) of the Code of Criminal Procedure, 1973 says that persons or a mob involved in thesame offense in the same act can be tried together. But, this has not proved to have given enough legal teethto justice delivery system.The urgency of time is to draft a suitable law that safeguards an individual from ‘a monstrous new moral or-der…irrigated by the blood of our citizens’, says Pratap Bhanu Mehta, a prominent Indian public intellectual[Time, June 29, 2017].Ironically In absence of a specific law, violence on the streets will have social function, and India as a nationthrough its silence will be complicit to the crime against humanity. Page 21
Libertatem Magazine - Edition 31 the cou By Swarnalee Haldar, Jane Maria, Piyush Agnihotri & Sweta Subudhi
the Courtroomurtroom
Libertatem Magazine - Edition 31 Alimony is not synonymous with Looting Alimony is one never dying joke in the households. How the wife looted the man? How the man rejected even paying a penny to his child and wife? The most exciting chapter in a divorce book would be ‘ali- mony’. Ironically, where dowry stands in the marriage ceremony, today, ‘alimony’ stands in a divorce proceedings. It cannot be said that the concept of ‘alimony’ is itself nonsense. A woman must be given her share of maintenance by the husband since the traditional times. Yet, the society’s notions of family and woman are changing. Women are becoming independent pillars at home rather than the damsel in distress. Hence, it is important for the notions of alimony to swerve around and halt according to the changing times. For instance, alimony has been increasingly denied by the Supreme Court where the income of the man is lower than that of woman. Thus, depending on the circumstances, equity and justice, alimony has to be decided by the courts as per the facts. Facts: In the instant case, a Varadaranjan had got married in Mayiladuthurai in 2001. He had a daughter born in 2003. Thereafter the wife claimed that he was neglecting the child and her. Hence, she filed for di- vorce. Issue: Is the responsibilities of the Husband ought to be considered while ascertaining the Alimony? Judgment: The court nodded a ‘Yes’. Justice RMT Teekaraman, pointing out that a family court had directed a man earning Rs. 10,500 a month to pay Rs. 7,000 to his wife and child, said it would leave just Rs. 3,500 for the man to maintain himself and his aged father. The court stated that: “While awarding the maintenance in favour of the wife and children, the court should take into consideration his responsibility to look after the aged old parents, since the husband has been fastened with statutory objections to look after and maintain not only his wife but also his parents under the very same Section 125 of CrPC.” Also, after slamming the attitude of the trial court, the Madras judge said such an order need not be con- sidered. The judge stated, “The trial court ought to have weighed the entire circumstances and placed reasonable assessment financial burden on the shoulder of the husband.” Learning Outcome: Alimony share is depended on the expenditures that the Husband have to take in his family. It is not only depended on the wives’ income alone. An equitable value must be ascertained. Jurisdiction of the Virtual Market When the Consumer Act was brought in, everybody had given a standing ovation to the Government for the sheer brilliant move for public welfare. Unfortunately, the claps began to ebb soon. The online consumer market was taking hold of the society and the Consumer Act turned out to be a helpless archaic legislation. It couldn’t even say for sure which court would have the jurisdiction. This applied in other laws as well. E-com- merce was generally a virtual world. Which court can take the jurisdiction in suchPage 24
the Courtroomkinds of transactions? Things get more complicated when the parties gives exclusive jurisdiction to a totallyunrelated court in online contracts and dispute about the validity of jurisdiction later.The Supreme Court has allayed these fears of the people of this country through a recent decision. The ver-dict was given by a bench of Justice S Abdul Nazeer and Adarsh K Goel.The facts of this case was that a Chandigarh- based woman, Rajni Arey, booked a ticket (Chandigarh to Delhivia Bagdogra and Kolkata) on yatra.com on 23rd July 2015 by paying Rs. 70,900. But, SpiceJet cancelled herreturn booking. They didn’t provide her any reason, whatsoever. Also, they didn’t provide her any otheralternatives. She filed a complaint against the SpiceJet in the Chandigarh Court.The first issue that the airlines raised was regarding the jurisdiction of the court. They held that the place ofbusiness of the airlines is in Gurugram. Hence, the Chandigarh court do not have jurisdiction.The airlines had based its argument on Section 11 of the Consumer Protection Act which provides that :-“A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—1. the opposite party or each of the opposite parties, where there are more than one, at the time of the insti- tution of the complaint, actually and voluntarily resides or 2[carries on business or has a branch office or] personally works for gain, or2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 3[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite par- ties who do not reside, or 4[carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or3. the cause of action, wholly or in part, arises.”The Supreme Court judged in accordance with the verdict of NCRDC. They held that in e-commerce transac-tion or online transactions, territorial jurisdiction over a consumer complaint would lie with the consumer fora situated at any place, where any of the aforementioned causes of action arises. The jurisdiction of the courtcannot be vitiated by raising such trivial issues, in the end. Erasing the Rape CleansersRape was a silent right of man. It had been a long struggle for the society to depose rape from that position inthe minds of the patriarchal attitudes. Yet, one cannot say - despite the fact that we are 21st century – rape isdethroned from the attitude of a ‘right’. Marital Rape is still never mouthed by the Indian Penal Code. Pathet-ic Right?If one would recall, during the Nirbhaya’s case, her parents were among the ones to say her real name outinto the media. That was a strong lash out against the society’s conventional perspective to embarrass thevictim and give a silent applause, at times, to the rapist.In the end, despite how raped our minds are, one person who can lay back and enjoy the view is a rapist. Theopportunities that are offered to cleanse his sins are manifold. It begins from the argument that the girl waswearing ‘indecent’ dress; his intoxicated state of mind etc:. Yet, since centuries, one act from the rapist’s sideis powerful enough to canonize him. That is, marry the victim. In the Holy Scriptures of all the religions, wewould find the mention of this ‘glorious sacrifice’ of so-called ‘upright men.’Yet, one question that is remaining in my mind is whether it can undo what was done. Whether marrying herwould erase her trauma? At times, the victim might give consensus for the fear of social shaming. Is marriagethe ultimate recourse to get back to living life? If that was so, I would say that the Indian Penal Code canchoose not to exist. What was the relevance of mens rea and actus reus?FactsThe Delhi High Court have realized this in its recent judgment. Mr. Vishal Kumar had filed a petition under Page 25
Libertatem Magazine - Edition 31 section 482 of Cr.P.C for quashing the charges of Section 323 (voluntarily causing hurt) and Section 506 (crim- inal intimidation), Section 376(2) (rape by public servant). He claimed that the victim was now having consen- sual relationship with him and the rape complaint was frivolous. Issue Whether the mere fact that the parties have allegedly got married should be a reason good to quash the F.I.R registered under Section 376(2) (N)/ 323/ 506 of IPC and consequential proceedings emanating from them? Judgment The court completely negated this point of view. What is done cannot be undone through a marriage? If so, it would be a mockery of our justice system. Hence, Justice Pratibha Rani noted that:- “In the view of the settled legal position enumerated in Gyan Singh Case the criminal proceedings emanating from a FIR registered with allegations of rape, which is an offence against the society, despite the alleged marriage of the petitioner with the accused cannot be quashed in exercise of the powers of the conferred under section 482 of Cr.P.C.”Parliamentary StandingCommittee’s suggestions onSurrogacy Bill The Parliamentary Standing Committee had suggested changes in the controversial bills of Surrogacy Bill. The report began criticizing about the lack of regulatory mechanism over surrogacy. Many a times, the surrogate mothers are confined to the specific homes until the child is born. There are no laws to acknowl- edge the basic treatment that they ought to receive. Also, the organizations who organizes surrogacy extracts around 20 lakhs from the parents but pays only 1 to 3 lakhs to the surrogate mothers. There is no check to regulate the surrogacy mechanisms in India. The lack of legal protection for the surrogate moth- ers puts them on the risk of doing altruistic surrogacies in the end. Also, when compensation is given to the surrogates, the following expenses must be paid under law :- “lost wages for the duration of pregnancy, medical screening and psychological counseling of surrogate; child care support or psychological counseling for surrogate mother’s own child/children, dietary supplements and medication, maternity clothing and post – delivery care.” Thus, the compensation must not be depended on the bargaining power of surrogate mother. It must be ascertainable under law. In case of the death of the surrogate mother, additional relief must be paid to her kin. Also, the surrogacy should not be translated into a commerce. The Report agreed with the govern- ment in this issue. A woman who has been a surrogate mother once should not be given permit to do one more surrogacy. The report stated that the Government should not take away the rights to surrogacy by casting adoption as a means. The nature of both these methods is extremely different. Hence, the committee has recom- mended that all intending couples should have the right to go for second chance at surrogacy in case of any abnormality in the previous child irrespective of the fact whether the abnormal child is born through surrogacy or by other means. Another conflict that the report observed in the Bill is where it denies eligibility to the NRIs, OCIs, and PIOs couple who are of Indian origin, the right to surrogacy.Page 26
the CourtroomFurther, the Committee came one step ahead by recommending for insurance services for the surrogatemother even after the period of surrogacy for the health complications that arise from the delivery. A periodof six years of medical insurance cover along with life insurance of a certain sum of money for the surrogatemother needs to be determined to cover any health complications that may occur long after delivery.In the end, it can be noted that the Committee had given a constructive feedback to ameliorate the harsh billof Surrogacy tabled before the Parliament. Whether all these recommendations have fallen on deaf ears ornot can be ascertained only from the monsoon session deliberations in the Parliament that is to come soon. Bombay high court imposes Rs.50000 cost on petitioner Facts The Bombay High Court recently quashed an FIR filed under Section 376 (2) of the Indian Penal Code on the condition that the petitioner-accused pays cost of Rs. 50,000 for burdening the court machinery in order to settle a private dispute. Court hearings The court was hearing a petition filed by Mohammed Bablu Kasiruddin Shaikh, whose advocate KS Patil submitted that during the pendency of investigation in the said FIR, both parties had amicably settled their differences mutually and as a result of that, the said petition was filed with the complainant’s consent. Additional Public Prosecutor NB Patil opposed the petition, submitting that the offence against the petition- er was a serious one and it was an offence against the society. The court noted that the complainant, who was present in the court, had stated in her affidavit that the said FIR was filed as a result of a misunderstanding. She also told the court that she had no objection if the FIR would be quashed and that she was under no pressure. Referring to the Supreme Court’s decision in Narinder Singh vs State of Punjab, the court said: “The decision of the Apex Court makes it clear that the Court cannot decline to quash the FIR merely because the FIR in- corporates a particular provision, which is a serious offence or an offence against the society. The Court has to endeavor to find out whether the FIR indeed discloses ingredients of such offence and that the Court can accept the settlement and quash the FIR / Charge-sheet if the Court is of the opinion that such an offence is unnecessarily incorporated in the charge-sheet.” The court further noted that a reading of the said FIR and an earlier complaint makes it “abundantly clear” that the relationship is consensual and it is merely a “dispute between private parties”. The court cited the overburdening of criminal courts and said there was no reason to burden them further by keeping the FIR alive. The Bench A bench of Justice Ranjit More and Justice Sarang Kotwal directed the authorities that the amount be used towards treatment of advanced and terminally-ill cancer patients at Tata Memorial Hospital, Mumbai. The bench observed: “As the police machinery and the Court machinery was used by the parties to settle their private disputes as a corollary of differences of opinion, we find it would be appropriate to saddle the Petitioner with the cost of Rs.50,000, which shall be paid to the “Tata Memorial Hospital” an institution that takes care of the advanced and terminally ill cancer patients.” Judgement The petitioner will have to produce a receipt of this payment within four weeks of the said order or else the petition would stand dismissed automatically. Page 27
Libertatem Magazine - Edition 31Court Summons Ola & Uber as Ac-cused for Allegedly Overcharging Facts An App-based cab service providers, including Ola and Uber, were summoned on july 31,as accused by a Delhi court for allegedly running taxis in the city without licence and overcharging passengers. Metropolitan Magistrate Abhilash Malhotra said a prima facie case of permit violation was made out against the firms for allegedly charging excess fares which is in violation of the provisions of the Motor Vehicles (MV) Act. The court summoned ANI Technologies Pvt Ltd, which runs Ola, Uber India Systems Pvt Ltd and Serendip- ity Infolabs Pvt Ltd, which runs Taxi For Sure, and directed their authorised representatives to appear before it on December 11. Court’s order The court’s order came on NGO Nyayabhoomi’s plea, filed through advocate Sumit Kumar, seeking pros- ecution of the three firms under various provisions of the MV Act. Section 93(1)(I) of the MV Act mandates that an agent who solicits the customers for public service vehicles (PSV) is required to obtain a license under the Act. The court noted that firms are running the public service vehicles on contract carriage basis. “The firms are acting as an aggregator who is deciding the drivers, customer allocation, fares, SOS protocols and other administrative issues. It is alleged that no license under the Section 93 of MV Act has been obtained by the firms for running PSV in Delhi which is in violation of City Taxi Scheme, 2015 and section 93 of MV Act. The court noted that the complainant NGO through its secretary Rakesh Agarwal, has also placed on record documents claiming that the firms were overpricing. It noted that the fares have been decided by transport department of Delhi government through a June 20, 2013 notification which prescribed the minimum fare per kilometer, night charges, waiting charges and flag down charges. The Delhi High Court, in its August 11, 2016 order in which the firms were also parties, had directed that after August 22, 2016, taxi aggregators/ operators shall not charge fare more than the cap stipu- lated in the government’s June 2013 notification. The magistrate noted “prima facie it is clear that excess fares have been charged by the companies in viola- tion of MV Act, June 20, 2013 notification as well as CTS scheme. Accordingly, prima facie case for permit violation under the MV Act is made out.” The plea claimed that during the transit, the customer is not able to check/ ascertain the fare and it is calculated and informed via App to the customer only on conclusion of the journey. Complainant had also placed on record details of the firms’ diesel taxis which are still on rolls. The court had earlier recorded pre-summoning evidence advanced by the complainant in support of the plea, which had also sought summoning of the three firms as accused. The NGO had also sought recovery of a whopping Rs. 91,000 crore from cab service providers for allegedly not adhering to rules relating to fares and not operating by meters. Last judgement of the court The court sought recovery of an additional penalty of Rs. 26,000 crore from the firms and jail term for them. The court, however, had treated “dismissed as withdrawn” an application filed by the same NGO seeking lodging of FIR against the three app-based cab service providers, holding that the offences alleged in the plea under the MV Act were “non-cognizable”. It had allowed the complainant to lead evidence in support of the complaint under the CrPC that these three cab companies were also allegedly violating permit conditions by running vehicles on diesel and providing point-to-point service in Delhi.Page 28
the CourtroomDelhi High Court: Derogatory Posts Against SC/ST On Social Media Is An Offence The Delhi High Court said that that any offensive post on social media targeting an individual of the SC/ST community, even if made in a closed group, is punishable. Court further stated that not only open social media platforms like Facebook and Twitter are to be encompassed under the purview of such judgment but also other social media platforms like Whatsapp, Hike etc. though they have closed privacy settings. Facts Such an observation came in light when Court was dealing with a case in which FIR was lodged by a woman against her sister-in-law for allegedly making offensive statements on Facebook against the ‘dhobi’ community. The complainant had accused her sister-in-law of making the statements to humiliate her as she belonged to the ‘dhobi’ community. However, the sister-in-law moved to the court for dismissal of the FIR stating that the state- ments about ‘dhobis’ were made on her Facebook ‘wall’ and the complainant had been blocked from viewing it. The police on the other hand opposed the dismissal of the FIR by stressing upon the fact that the privacy of the posts was intentionally changed from private to public in order to enable everyone to read it. Judgement Court agreed to proceed with the matter putting it under the scrutiny of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, which deals with casteist remark against member of such community. Bench head by Justice Vipin Sanghi took recourse to Section 3(1)(x) of the SC/ST Act which makes it an offence if some- one makes statements which intentionally insult or intimidate with the intent of humiliating a member of such communities in any place within public view. In light of the section Justice stated “To my mind, it would make no difference whether the privacy settings [on social media accounts] are set by the author of the offending post to private or public. Pertinently, Section 3(1)(x) of the Act does not require that the intentional insult or intimidation with an intention to humiliate a member of SC/ST should take place in the presence of the said member”. Adding more of an interpretation to the section Court added “in the case of social media platforms, public view would include any independent or impartial witness who has seen an offensive statement. It, howev- er, said that “generalised statements against all and sundry, and not against specific individuals belonging to SC/ST, would not make out an offence under section 3(1)(x) of the Act”. Coming back to the specificity of the post Court found nothing that could be said to be directed against any indi- vidual member of any schedule castes or schedule tribe. Court agreed that generalised statements against all and sundry and not against specific individual belonging to the scheduled caste or scheduled tribe, would not make out an offence. “For all the reasons, the FIR as well as the proceedings qua the petitioner under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are hereby quashed,” the court said. Learning outcome Difference between what is public and private in the purview of Social media has been debated out in the case where Court made it very clear that any post on social media including applications providing private settings will be considered to be published publicly. Such observation is necessary to be pointed out considering the un- certainty as to the utilisation of such data in the wide web of networking. Various sensitive issues are now being debated on social platforms by the public of different age group, intellect and social strata putting their opinion in so called words but such are time and again seen to be utilised by people to propagate their agenda, to influ- ence less aware people with corrupted facts creating a unwanted situation of distress. While running along with the pace of trending social media people usually forget to draw a line between what can be posted and what shall not be. Though we hold Right to Freedom of Speech and Expression but it is not absolute and such is again hammered as right by the court in the above mentioned judgement. We need to understand on thing that social media is a very wide platform and what we think we are doing privately is not at all private in reality. You may address your thoughts to particular person or on your personal account but remember it can always go viral because smartphones are really smart nowadays, one snapshot and rest can be understood. So be wise while being on social platform and understand that it is not a place where you should go open with regards to all your thoughts and opinions, real life discussions are still better. Page 29
Libertatem Magazine - Edition 315 Lakh As Damages ToYahoo Inc. For Its TrademarkInfringement Single judge bench of Delhi High Court directed payment of Rs. 5 Lakh as pecuniary damage to US-based Yahoo Inc. for trademark infringement by a website called ‘yahookochi’. Facts Yahoo Inc. filled a suit against YahooKochi for permanent injunction restraining infringement of trade- marks, passing off, dilution and tarnishment, unfair competition, damages or rendition of accounts, de- livery up etc. when they came to know about such site using deceptively same name and font style. Mr. Praveen Anand, learned counsel for plaintiff stated that the plaintiff is owner of registered trade mark YAHOO and YAHOO formative trade marks in various classes. Mr. Anand contended that defendants are infringing the plaintiff’s trade mark. In support of his contention, he referred to a print out from de- fendants’ website-www.yahookochi.com. He further submitted photograph of the same depicting old font style Yahoo loo used in the name of the website “Yahookochi”. Aggrieved by the practice of trademark infringement by the website Yahoo sent a Cease and Desist notice dated 23rd May, 2015 to the defendants but defendants refused to change the same stating that they had spent huge amount of money and time in promoting and advertising the mark in question. Earlier, on 20th October, 2015, Delhi High Court granted an ex parte ad interim injunction in favour of the plaintiff and against the defendants.Since despite service defendants did not enter appearance, they were proceeded ex parte vide order dated 26th October, 2016 and the ex parte interim injunction was confirmed. Judgement Court finally setting out its judgement in the case observed that defendants fall under Class 39 of the Nice Classification in which the plaintiff has trade mark registration for YAHOO formative marks. The plaintiff also operates various websites under its YAHOO trade mark providing information on travel and tourism services. Court found that by comparing the font style used by defendants it is evident that defendants were dis- honest while using YAHOO as their trading name which is identical to the unique stylized font which the plaintiff used to represents its YAHOO trade mark till 2014. Justice Manmohan observed that “There is also no plausible explanation for the adoption of the identical mark as part of trading name and domain name of the defendants. Further, the defendants cannot have any justification for the adoption of the mark YAHOO. The potentiality of harm is enormous on the inter- net as the plaintiff has a very wide internet presence and operates various YAHOO formative websites.” Assessing the cost considering the six month working period of the website entitled YAHOO to compensa- tory damages of Rs.2 lacs and punitive damages of Rs.3 lacs. Learning Outcome The case was open and shut case since photograph submitted by the YAHOO had done the job quite comfortably. YAHOO being a famous and internationally reputed brand occupying its position on inter- net even before Google cannot be used in any way to promote your goods or legally speaking to pass your goods and services. Going through the font style used by “yahookochi” one can easily be deceived consid- ering such services were being provided by YAHOO itself. One must understand that once your goods and services are enjoyed by the public at large, goodwill comes into existence which is usually associated with the brand name. For example TATA which is a leadingPage 30
the Courtroom brand in various sector like automobiles to tea products, generally people do not know all the services and goods being offered under the head name of TATA and in that way one can easily deceive people by pass- ing its goods branding itself as TATA though with slight variations but not enough to differentiate. In the due course, TATA’s goodwill is utilised by the one to gain undue profits alongwith putting such goodwill at stake also, since if something goes wrong or product passed on under brand TATA fails to fulfill buyer’s expectation leading to negative impact over TATA’s market. Intellect is a piece of your mind’s effort which when materialised in a form of goods or as a medium to deliver any services, it becomes your property and rights so associated becomes legaly enforceable in the court of law. IP law safegaurds one’s interest over his product along with promoting other to discover and manufacture whole new product or service adding inovation as an essential ingredient. Similarly, YAHOO in the present case was so benifited with regard to infringement of its legal right to manufacture and mar- ket goods and services under the brand name YAHOO exclusively. With the whole new opportunities to promote and conduct your business on internet or even off-internet one must look out for innovations rather than copying as Intellectual Property are one that define and por- trays someone in particular.The result of a 12 yearstruggle of Amrita SharmaBrief FactsAmrita Sharma a 48 year old woman is finally getting compensation for the death of her husband Tarun Shar-ma. According to the complaint filed by Amritaben , the kin of the man , he collapsed inside the recreationalclub, premises during morning walk on December 16 , 2005.The Surat city Gymkhana is one of the post clubsof the city. Since there was no staff available, another member took him to a nearby hospital where he diedthe next day. The club claimed that it was a natural death and under no circumstances, was it attributable toany other factor than “an act of God”. The club also contested that the death could not be related to any defi-ciency in service on the part of the Club. Therefore the club approached the state commission.The state commissions decisionThe Gujarat state consumer commission had asked the club, its president and secretary to pay the amountjointly and severally to the kin of Sharma. The commission also said that since the club provides certain facil-ities to its members against payment of a consideration comprising one time and recurrent fees, it is a serviceprovider and the deceased was its consumer. State commission had asked the club to pay Rs. 18 lakhs ascompensation. The club approached the apex commission.The apex commissions decisionsThe National Consumer Disputes Redressal Commission (NCDRC) asked the Surat City Gymkhana to paythe sum to its member Tarun Sharma’s family and said “there was no help whatsoever from the club” which“amounted to callousness and thus severe deficiency in service”.“The very fact that they failed to produce any evidence at all, even by way of affidavits of their officials who were presentand who provided first aid and who helped take the deceased to the hospital, speaks volumes and is self- incriminating,”the bench, headed by presiding member Anup K Thakur, said. The commission also held the state’s decision“since the club provides certain facilities to its members against payment of a consideration comprising one time andrecurrent fees, it is a service provider and the deceased was its consumer.”Last judgementThe Gujarat state consumer commission had asked the club, its president and secretary to pay the amountjointly and severally to the kin of Sharma. Later the club approached the apex commission which upheld thestate commissions decision. Page 31
Published by Libertatem Media Group,Royal Heights, Khodiyar, Ahmedabad 382421 Gujarat, India www.libertatemmagazine.com Read the magazine on © All Rights Reserved by Libertatem Media Group [2017]
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